Why Tort Reform is the right move to cut costs:
Tort Reform will successfully cut medical costs by a significant amount. Doing so will redistribute risk, and open the opportunity to discuss decisions and safety more fully with patients. Risk in medical decision making is something that should be openly shared, and does not belong solely with the doctor. Let’s look at this from both the doctor and the patient’s standpoint.
Consider: I am the doctor (and I am), and the percentage chance of my being wrong is perhaps 1 in 1000 for any patient I see (maybe I am better than this, maybe I am worse). And now let’s say that I see many with risky presentations, say chest pain, and say 10 cases a day. In this scenario, I would make a “mistake” about every 100 days, or three times a year. If I were magically better than this and made an error 1 in every 10,000 cases, then it would be about every three years.
So, using the 1/10,000 number, a doctor whose skill ratio is 99.99% (and I don’t know any) is going to have to deal with a malpractice case every three years. That means many (many) hours of legal haggling, sleepless nights, depositions, loss of income, self-deprecation, and on, and on. It’s a bad three years, I understand, and if it happens every three years, it’s a bad life.
So putting yourself in the shoes of the doctor, consider this. Suppose by ordering a totally thorough workup (full range of tests, consultants, hospital admission) on every chest pain patient that comes through the door, you can take the threat of suits significantly away. That means, perhaps, that of the 10,000 cases in the three year situation, many thousands would be called “unnecessary” workups. BUT, that one case, the one that otherwise would have landed you in court, was caught. You would have, indeed, driven up the cost the cost of health care, but you would have covered the risk.
So, if you were the doctor, how would you practice? I know the answer for me. I have practiced for 35 years without a malpractice suit. Expensive to the system perhaps.. But you might wisely, have chosen to see me, too.
Now consider: I am the patient (and I have been). Your doctor says to you: “I make a mistake about every three years if I do not run a full gamut of tests.” You look at the clock; then the calendar. You remember your birthday, and wonder if you will live to your next. You want to ask “when was your last mistake?” But the important question is: “what is the risk to me if you are wrong?”
Keep in mind that the nature of your medical problem changes the severity of the risk. Using chest pain as an example makes the risk “you might die.” If the presentation were instead ankle pain, the risk might be: “you might have pain” or “you might be physically impaired.”
Now the question becomes: do you, as patient, want to accept that risk?
In most cases, given that the doctor is best trying to help a patient, rarely discussed are the risks of different choices, especially those of testing versus not-testing. Sometimes a patient is able to understand such issues, if presented, sometimes not. In any case, the ground is fertile in the house of medicine for the continued advance of open doctor-patient communication about decisions, and for mutual consideration of safety and risk.
Our bottom line becomes: how do we navigate through human imperfections, while improving safety, sharing the risk, and protecting all concerned? When they were senators, Hilary Clinton and Barak Obama appropriately directed attention to patient safety and open communication between doctor and patient as necessary centerpieces for achieving these goals.
These, combined with substantial tort reform, have the potential to generate a huge impact on medical costs.
Donald Kamens, MD, FACEP, FAAEM
Donald Kamens, MD, FACEP, FAAEM
